[Federal Register Volume 88, Number 241 (Monday, December 18, 2023)]
[Notices]
[Pages 87385-87393]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-27683]


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DEPARTMENT OF AGRICULTURE

Farm Service Agency

[Docket ID: FSA-2023-0017]


Request for Information on Agricultural Foreign Investment 
Disclosure Act (AFIDA) FSA-153 Form Modernization and Information 
Collection Request

ACTION: Notice; and request for comment.

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AGENCY: Farm Service Agency and Farm Production and Conservation 
Business Center, Department of Agriculture (USDA).
SUMMARY: The Farm Service Agency (FSA) is requesting information on 
proposed revisions to the Agricultural Foreign Investment Disclosure 
Act Report (FSA-153 form). The FSA-153 requires updating. Specifically, 
the FSA-153 form needs clarification and updating to ensure that 
foreign owners (or long-term lessees) who are required to file the FSA-
153 form have clear instructions and that USDA is collecting the most 
precise and meaningful data, so that the report to Congress is as 
accurate and insightful as possible. Foreign owners are investors who 
buy, sell, or hold a direct or indirect interest in U.S. agricultural 
land (or who hold long-term leases on agricultural land) and must 
report their holdings and transactions to USDA on the FSA-153 form. 
USDA uses the information on the submitted forms to generate the report 
that it submits to Congress. FSA is moving towards modernizing the 
collection of information process, clarifying and modernizing the FSA-
153 form, and if funding becomes available, creating an electronic 
submission system that will allow foreign owners to report by filing 
electronically. In addition, this document requests public input for 
our plan to revise not only the information request, but ultimately, 
the regulation (which will likely result in further modifications at a 
later date to the FSA-153 form).

DATES: We will consider comments or information that we receive by 
February 16, 2024.

ADDRESSES: We invite you to send comments in response to this notice. 
You may submit comments, identified by Docket ID: FSA-2023-0017 in the

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Federal eRulemaking Portal: Go to https://www.regulations.gov and 
search for FSA-2023-0017. Follow the instructions for submitting 
comments.
    All comments will be posted without change and will be publicly 
available on www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Mary Estep; telephone (202) 720-3217; 
or email <a href="/cdn-cgi/l/email-protection#573a36252e793224233227172224333679303821"><span class="__cf_email__" data-cfemail="412c2033386f243235243101343225206f262e37">[email protected]</span></a>. Individuals who require alternative means 
for communication should contact the USDA TARGET Center at (202) 720-
2600 (voice and text telephone (TTY)) or dial 711 for 
Telecommunications Relay Service (both voice and text telephone users 
can initiate this call from any telephone).

SUPPLEMENTARY INFORMATION:

Background

    The Agricultural Foreign Investment Disclosure Act of 1978 (Pub. L. 
95-460) requires ``foreign persons'' who hold, acquire, or dispose of 
an interest in U.S. agricultural land to report transactions and 
holdings to USDA through the Agricultural Foreign Investment Disclosure 
Act Report (FSA-153 form) within 90 days of the transaction. In this 
document, we are using the term ``foreign owners'' to refer to the 
people, companies, governments, and others who are required to report 
their transactions and holdings to USDA. ``Foreign owners'' is an 
umbrella term that also includes long-term leaseholders (typically in 
the wind and solar industries).
    In recent years, there has been great interest in the annual AFIDA 
report to Congress. Further, section 773 of title VII of the 
Agriculture, Rural Development, Food and Drug Administration, and 
Related Agencies Appropriations Act, 2023 (7 U.S.C. 3501 note; Division 
A of the Consolidated Appropriations Act, 2023; Pub. L. 117-328) 
requires the Secretary to establish a streamlined process for 
electronic submission and retention of disclosures made under AFIDA, as 
well as to create an internet database that contains disaggregated data 
from each disclosure submitted to USDA. In order to fulfill this 
mandate, FSA must collect the data that best captures all of the 
requirements of AFIDA with minimal burden on foreign owners. Until 
additional funding is available, or re-prioritization of funding 
occurs, FSA will continue to collect information through the paper-
based FSA-153 form.
    Given that the FSA-153 form has not been updated for years, an 
internal working group--composed of AFIDA headquarters specialists, 
information technology specialists, FSA field staff, and other USDA 
employees--met in the spring and summer of 2023 to discuss revisions to 
the form to gather more precise data to prepare for meeting the Section 
773 mandate and to clarify and modernize the form. This document 
requests public input for our plan to revise the information collection 
request as part of our information collection request, which will be 
submitted to OMB to renew and revise their approval for OMB control 
number 0560-0097.
    AFIDA data collection has operated in much the same way for the 
past 40 years. FSA administers AFIDA for the Secretary. Foreign owners 
can work through the FSA county office to fill out the form or, for 
more complex cases, directly with the AFIDA headquarters staff in the 
FPAC Business Center's Economic and Policy Analysis Division. Forms are 
typically filled out manually and mailed in hard copy to headquarters 
staff (whether originating in the FSA county office or received 
directly, in the case of complex situations, from foreign owners or 
their representatives). The AFIDA headquarters staff check all incoming 
reports for accuracy and completeness and work with the foreign owner 
(or FSA county office) if additional information is needed. The data 
from each FSA-153 form is then manually hand-entered in an in-house 
data system designed to produce the annual report to Congress.

Definitions

    A foreign person is, generally, an individual who is not a U.S. 
citizen or permanent resident, or an entity that is:
    <bullet> a foreign government,
    <bullet> an entity formed under the laws of a foreign government, 
or
    <bullet> an entity formed under a U.S. law in which a foreign 
person has a reportable direct or indirect interest.
    A reportable interest is an interest held by a foreign person in 
agricultural land as:
    <bullet> a direct landowner (the title holder),
    <bullet> a direct leaseholder if the lease is for 10 years or more,
    <bullet> an indirect landowner or leaseholder.
    A reportable indirect interest is any interest held by a foreign 
person in any entity that has an interest in agricultural land as an 
owner or leaseholder if the lease is for 10 years or more (excluding 
contingent future interests). To be reportable, the interest held in 
the entity by the foreign person must be:
    (1) 10 percent or more by a foreign person or group of foreign 
persons acting in concert, or
    (2) 50 percent by a group of foreign persons not acting in concert.
    Form FSA-153, tracks ownership to the third ownership tier.
    For AFIDA purposes, agricultural land is land used for 
``agricultural purposes'' that is:
    <bullet> more than 10 acres in size in the aggregate; or
    <bullet> 10 acres or less in the aggregate producing gross annual 
receipts of more than $1,000 from the sale of farm, ranch, or timber 
products in total.
    ``Agricultural purposes'' is defined as land that during the 
current year or any 1 of the preceding 5 years was used for:
    <bullet> farming, ranching, pasture, orchards, vineyards, timber 
production, and so on; or
    <bullet> forestry production exceeding 10 acres in size in which 10 
percent is stocked by trees of any size, including land that formerly 
had such tree cover and will be naturally or artificially regenerated. 
It does not matter whether the foreign person ever intends to cut and 
sell the trees.
    These definitions apply even if the land has been planned and 
plotted or re-zoned for nonagricultural purposes.
    Agricultural land is categorized as cropland, forestland, 
pastureland, other agriculture, and non-agricultural land (homesteads, 
farm roads).

Reporting

    Foreign owners (or often, their U.S. attorney representatives) 
meeting the requirements above report their information on the existing 
FSA-153 form found at: https://forms.sc.egov.usda.gov/efcommon/eFileServices/eForms/FSA153.PDF. In addition, the foreign filer must 
file a separate FSA-153 form when:
    <bullet> the agricultural land is acquired or disposed of on 
different dates;
    <bullet> the agricultural land is in multiple counties; or
    <bullet> partial vs. whole ownership interests are different for 
the different parcels acquired at the same time and in the same county.
    In addition to the FSA-153 form itself, foreign owners must provide 
the legal description of the parcels that they acquired (or disposed 
of) and, if applicable, the tiers of ownership (to the third tier).
    In addition to acquisitions and dispositions, reporting of an 
amended FSA-153 is triggered when the land use changes, the tiers of 
ownership change, or the name of the foreign person changes.
    The annual report to Congress is available on: https://www.fsa.usda.gov/programs-and-services/economic-and-policy-analysis/afida/annual-reports/index. The annual report contains information on 
the top-five countries

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holding different forms of agricultural land, the concentration of 
holdings geographically, and other information.

Geographic Context for the Location of the Land

    AFIDA information has no direct linkages to FSA's Farm Records or 
other FSA systems. Parcel and foreign owner numbers are assigned by 
AFIDA headquarters staff; these numbers have no relevance for other FSA 
programs. The current FSA-153 form requires that the foreign owners 
provide the legal description or FSA tract number. Very few foreign 
owners provide an FSA tract or farm number and only provide a hard copy 
of the legal description.
    Also, USDA is increasingly questioned by agencies within the 
federal government, and others, about purchases by certain entities and 
the geographic location of their holdings. We can provide the legal 
description--typically a ``Platt type'' map--that has no context 
allowing immediate geo-spatial interpretation. Accordingly, we are 
asking foreign owners to provide their legal description for each 
parcel and to also identify one or more of the following:
    <bullet> The longitude and latitude for each parcel;
    <bullet> The property tax ID number assigned by the county; and
    <bullet> The FSA tract number and the FSA farm number.
    We do not have the authority to require that foreign owners provide 
this information or that they obtain an FSA tract and farm number. 
However, we are requesting that they voluntarily provide at least one 
of these additional data points.

Request for Information

    We are requesting public input for the following questions:
    (1) Is the request for additional information an undue burden on 
foreign owners or their representatives? If so, why?
    (2) Are there additional options that should be added to the list 
above? If so, what are those options?

Long-Term Leaseholds

    Currently, there are no specific questions about leases on the 
form. As a result, foreign owners are writing in ``lease'' in box 5.f 
on the FSA-153 form. Long-term leases are a significant category of 
reports, and Congress and others have a strong interest in capturing 
leasing data. There are several changes proposed on the FSA-153 form to 
capture data on the types of leases and the value of the lease.

Request for Information

    We are requesting public input for the following questions:
    (1) Are long-term leasehold filings--particularly those in the wind 
turbine and solar panel industries--``different enough'' from land 
ownership purchase or sale filings that a separate version of the FSA-
153 form should be created? Should a different ``logic path'' of 
questions be developed for long-term leasehold filings?
    (2) Many foreign wind energy companies have long-term leaseholds on 
U.S. agricultural land farmed by U.S. producers that trigger the AFIDA 
reporting requirement. Currently, the entire acreage of the parcel is 
captured; this is because the number of wind turbines that will be 
established on the land (if any) is often an unknown at the time of 
AFIDA reporting. In addition, the existence of the leasehold generally 
precludes other energy company involvement on the acreage. Does this 
approach overstate foreign energy company activity on U.S. agricultural 
land? If so, how should the acreage associated with these leaseholds be 
captured?
    (3) How should solar panels or photovoltaics--which are situated 
above the agricultural land--be treated for AFIDA reporting given that 
AFIDA uses an acreage basis for reporting?
    (4) Some foreign owners are providing a very low estimate of the 
value of the lease (as the flat payment is low) on the FSA-153 form 
while others are providing the estimated value of the entire parcel. 
How should ``interest in the value of the agricultural land'' be 
defined for leases?

Impacts on Farms and Rural Communities

    AFIDA requires USDA to determine the impacts of foreign ownership, 
which the Economic Research Service provided in the report to Congress 
posted in December 2022 (containing data as of December 31, 2021). In 
order to assess impacts, and answer questions from Congress and the 
media (for example, are farmers being kicked off their land?), 
questions 9 through 12 on the existing FSA-153 form are being 
considered to be replaced by a new set of proposed questions 11 through 
13.

Request for Information

    We are requesting public input for the following questions:
    (1) Do the revised questions capture the scenarios needed to 
ascertain the impacts of foreign investment in U.S. agricultural land? 
If not, what questions should be added, or should the proposed 
questions be modified?
    (2) Do these questions put an undue burden on the foreign owner or 
their representative?
    (3) Are there situations where responding to the questions as 
written may result in unclear inferences--for example, if there are 
foreigners who are both farming land they have purchased within a 
county, and renting? How common are such situations?
    FSA has several general questions associated with the FSA-153 form, 
which are listed below:
    (1) By regulation, reporting by foreign owners is required to the 
third tier of ownership. The form does not capture information on the 
ultimate owning country or countries. Should this information be 
captured?
    (2) Should foreign owners be required to report beyond the third 
tier of ownership? If so, why?
    (3) What ownership level should bear the reporting obligation?
    (4) Should the FSA Farm Records and AFIDA definitions of ``tract'' 
be aligned? If so, why?
    (5) Should parcels that are part of the same purchase or lease but 
are to be used differently--say, for agricultural vs. non-agricultural 
purposes--be treated differently by AFIDA? If so, how should the FSA-
153 form be modified? Please provide examples and explain why.
    (6) The AFIDA regulation currently provides a list of exemptions to 
reporting. Should filing be required in situations of contingent future 
interests? If so, what kind and what types should be exempted, if any? 
Should reporting be required under any circumstances for easements? 
Please explain.
    (7) Should foreign owners be required to submit an amended FSA-153 
form when land use changes within the agricultural category (say, if 
acres move from pastureland to cropland relative to the original 
reporting)?

Information Collection Request

    FSA is requesting comments from all interested individuals and 
organizations on a revision to the currently approved information 
collection request associated with the Agricultural Foreign Investment 
Disclosure Act (AFIDA) of 1978. FSA is proposing a modified FSA-153 
form and an appendix A showing the tiers of ownership. The modified 
FSA-153 and Appendix A are available at the end of this notice; you may 
provide comment in www.regulations.gov. You can also provide comments 
on all aspects of the AFIDA information collection request and the 
collected information as described in this notice. We have increased 
the burden estimate because

[[Page 87388]]

we expanded the form and we estimated the number of times changes have 
been submitted over several years.

Description of Information Collection

    Title: Agricultural Foreign Investment Disclosure Act Report.
    OMB Control Number: 0560-0097.
    Expiration Date of Approval: August 31, 2025.
    Type of Request: Revision.
    For the following estimated total annual burden on respondents, the 
formula used to calculate the total burden hour is the estimated 
average time per response hours multiplied by the estimated total 
annual responses.
    Estimate of Respondent Burden: Public reporting burden for the 
information collection is estimated to average 2 hours per response.
    Respondents: Individuals or households, businesses or other for 
profit farms.
    Estimated Annual Number of Respondents: 7,775.
    Estimated Number of Reponses per Respondent: 5.
    Estimated Total Annual Responses: 38,875.
    Estimated Total Annual Burden on Respondents: 77,750 hours.
    We are requesting comments on all aspects of this information 
collection to help us to:
    (1) Evaluate whether the collection of information is necessary for 
the proper performance of the functions of the FSA, including whether 
the information will have practical utility;
    (2) Evaluate the accuracy of the FSA's estimate of burden including 
the validity of the methodology and assumptions used;
    (3) Enhance the quality, utility and clarity of the information to 
be collected;
    (4) Minimize the burden of the collection of information on those 
who are to respond, including through the use of appropriate automated, 
electronic, mechanical, or other technological collection techniques or 
other forms of information technology.
    All comments received in response to this notice, including names 
and addresses when provided, will be a matter of public record. 
Comments will be summarized and included in the submission for Office 
of Management and Budget approval.

Request for Meeting

    In addition to providing input in your written comment, if you 
would like to meet to discuss the proposed changes, please include that 
request in your comment, also. If there is interest, we will schedule a 
meeting.

USDA Non-Discrimination Policy

    In accordance with Federal civil rights law and USDA civil rights 
regulations and policies, USDA, its Agencies, offices, and employees, 
and institutions participating in or administering USDA programs are 
prohibited from discriminating based on race, color, national origin, 
religion, sex, gender identity (including gender expression), sexual 
orientation, disability, age, marital status, family or parental 
status, income derived from a public assistance program, political 
beliefs, or reprisal or retaliation for prior civil rights activity, in 
any program or activity conducted or funded by USDA (not all bases 
apply to all programs). Remedies and complaint filing deadlines vary by 
program or incident.
    Individuals who require alternative means of communication for 
program information (for example, braille, large print, audiotape, 
American Sign Language, etc.) should contact the responsible Agency or 
the USDA TARGET Center at (202) 720-2600 (voice and text telephone 
(TTY)) or dial 711 for Telecommunications Relay Service (both voice and 
text telephone users can initiate this call from any telephone). 
Additionally, program information may be made available in languages 
other than English.
    To file a program discrimination complaint, complete the USDA 
Program Discrimination Complaint Form, AD-3027, found online at https://www.usda.gov/oascr/how-to-file-a-program-discrimination-complaint and 
at any USDA office or write a letter addressed to USDA and provide in 
the letter all the information requested in the form. To request a copy 
of the complaint form, call (866) 632-9992. Submit your completed form 
or letter to USDA by: (1) mail to: U.S. Department of Agriculture, 
Office of the Assistant Secretary for Civil Rights, 1400 Independence 
Avenue SW, Washington, DC 20250--9410; (2) fax: (202) 690-7442; or (3) 
email: <a href="/cdn-cgi/l/email-protection#c4b4b6aba3b6a5a9eaadaab0a5afa184b1b7a0a5eaa3abb2"><span class="__cf_email__" data-cfemail="5f2f2d30382d3e327136312b3e343a1f2a2c3b3e71383029">[email protected]</span></a>.
    USDA is an equal opportunity provider, employer, and lender.
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Steven Peterson,
Acting Administrator, Farm Service Agency.
[FR Doc. 2023-27683 Filed 12-15-23; 8:45 am]
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